IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANTONIO CURTIS : CIVIL ACTION

 :

v. :

 :

SCHOOL DISTRICT OF PHILADELPHIA : NO. 05-04935-JF

DOLLIE CURTIS p/n/g of :

ANTONIO CURTIS, a minor :

v. :

 :

MICHAEL MULLAN :

MEMORANDUM AND ORDER

Fullam, Sr. J. November 1, 2005

Counsel in this case have managed to generate a great

deal of procedural confusion. The litigation stems from an

altercation between plaintiff Antonio Curtis, then a ninth-grade

high school student, and a teacher, the defendant Michael Mullan,

in February 2003. Mr. Curtis, through his parent and natural

guardian, sued Mr. Mullan in the Court of Common Pleas of

Philadelphia County, alleging only state-law claims (assault and

battery, negligence, etc.).

Some months later, in August 2005, Mr. Curtis, who had

attained his majority in the interim, brought a second action in

the Court of Common Pleas of Philadelphia County, against the

School District of Philadelphia. The complaint in that action

contains but a single count, entitled “Claim for Negligence,” but

paragraph 6 of Count I includes the following averments:

Case 2:05-cv-04935-JF Document 8 Filed 11/01/05 Page 1 of 4
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“6. The aforesaid accident was caused solely by the

negligent, willful and wanton actions of the defendant

in one or more of the following ways:

...

(h) Establishing policies that were violative and

unconstitutional on the United States

Constitution, particularly the Fourth and

Fourteenth Amendment.”

After the second complaint was served, counsel for the

City, who represented Mr. Mullan as well as the City of

Philadelphia, joined with counsel for plaintiff in both actions

in filing a motion to have the two cases consolidated. On

September 7, 2005, the Common Pleas Court entered a stipulated

order consolidating the two cases “for the purposes of discovery

and arbitration hearing only, with an arbitration date of March

30, 2006, at 9:30 a.m., in conformity with Philadelphia Civ. R.

1303(e).

On September 15, 2005, the defendants removed the

consolidated cases to this court, on the theory that plaintiff

was asserting a claim arising under the United States

Constitution. Plaintiff has filed a motion for remand, opposed

by the defendants.

I conclude that the case should be remanded to the

Court of Common Pleas, for several reasons. In the first place,

it is not clear that any of plaintiff’s claims arise under the

United States Constitution. Plaintiff seems to be accusing the

School District of negligence only, and it is not clear that

“right to relief under state law requires resolution of a

Case 2:05-cv-04935-JF Document 8 Filed 11/01/05 Page 2 of 4
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substantial question of federal law in dispute between the

parties.” Franchise Tax Bd. v. Construction Laborers Vacation

Trust, 463 U.S. 13, 103 S. Ct. 2846. The “mere presence of a

federal issue in a state cause of action does not automatically

confer federal question jurisdiction.” Merrell Dow

Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 813, 106 S. Ct.

3229. A reasonable interpretation of plaintiff’s complaint

against the City is that, as a result of the City’s state-law

negligence, plaintiff suffered damages equivalent to what a

Fourth Amendment violation would have produced.

In the second place, it is far from clear that the

limited consolidation of the two cases would suffice to warrant

removal of the earlier case, which was not removable, and as to

which removal would plainly be untimely. 

I need not dwell upon these issues, however, since, in

my view, defendants are estopped from removing either case by

seeking affirmative relief in the state court, and, in

particular, by stipulating to submit the cases to arbitration on

a specified date.

For all of these reasons, the case will be remanded to

the Court of Common Pleas of Philadelphia County.

An Order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANTONIO CURTIS : CIVIL ACTION

 :

v. :

 :

SCHOOL DISTRICT OF PHILADELPHIA : NO. 05-04935-JF

DOLLIE CURTIS p/n/g of :

ANTONIO CURTIS, a minor :

 :

v. :

 :

MICHAEL MULLAN :

ORDER

AND NOW, this 1st day of November 2005, IT IS ORDERED:

1. Plaintiff’s motion to remand is GRANTED.

2. These cases (i.e., the consolidated cases

captioned above) are hereby REMANDED to the Philadelphia Court of

Common Pleas.

BY THE COURT:

/s/ John P. Fullam 

John P. Fullam, Sr. J.

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